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Judge denies motion for new trial for convicted murderer Johnson

Convicted murderer Michael Samuel Johnson has lost his attempt for a new trial, The McDuffie Mirror has learned.

Toombs Judicial Circuit Superior Court Chief Judge Roger W. Dunaway, Jr. recently denied Mr. Johnson's motion for a new trial.

Mr. Johnson has maintained that he received ineffective counsel during his trial in McDuffie County Superior Court last year.

Mr. Johnson, who lived at a residence off the Wrens Highway near Thomson, was convicted of felony murder, aggravated assault and possession of a firearm during the commission of certain crimes, on Jan. 18, 2008 in McDuffie County Superior Court. After jurors found him guilty of those charges, Judge Dunaway sentenced Mr. Johnson to life imprisonment on the murder charge and five years to be served consecutively on the charge related to the firearm.

Jurors determined that Mr. Johnson shot and killed Todd Brooks at Mr. Johnson's mobile home on Thanksgiving eve, 2006. Mr. Brooks, who was married with children, died at the scene from multiple gunshot wounds.

Toombs Judicial Circuit District Attorney Dennis C. Sanders and Chief Assistant District Attorney Durwood Davis prosecuted Mr. Johnson.

Mr. Johnson's trial lawyer, Jacque Hawk, of Augusta, filed a motion for a new trial on Feb. 6, 2008, according to court records. The motion later was amended on Nov. 11, 2008, specifically pointing to 21 grounds for seeing a new trial - the majority of which alleged that he received ineffective counsel during his original trial.

The amended motion was filed by Mr. Johnson's new attorney, Brian Steel, of Atlanta.

As to the motion asking for a new trial on general grounds, Judge Dunaway ruled that the evidence presented during Mr. Johnson's trial was sufficient to allow the jury to find the defendant guilty of the charges in which he was convicted.

"The argument as to the general grounds is without merit," Judge Dunaway said.

In reference to the allegations raised by Mr. Johnson concerning ineffective assistance of counsel, Judge Dunaway said the defendant "must show that his attorney's performance was deficient" and that as a result, there exists a reasonable probability that the trial would have had a different outcome. "A strong presumption exists that counsel's conduct falls within the broad range of professional conduct," Judge Dunaway wrote in his order.

One of the specific allegations raised by Mr. Johnson in contending that Mr. Hawk was ineffective concerned him not objecting to the court's preliminary charge. Judge Dunaway told jurors the charges and the plea of not guilty are not evidence of guilt and they should not consider them as evidence or implication of guilt of any crime, whatsoever.

"Presumably, this allegation is directed at the court's slip of the tongue in saying that the plea of not guilty was not evidence of guilt," Judge Dunaway said. "Even so, that is a correct statement. The court did not say that a plea of not guilty was not evidence of the defendant's innocence. The instruction given by the court does not imply that the defendant had any evidentiary burden."

Judge Dunaway pointed out that in the final charge the court "correctly informed the jury."

Mr. Johnson also contended that Mr. Hawk rendered ineffective assistance by not objecting to Mr. Brooks' photograph in life having been admitted into evidence by a relative.

"The fact of the matter is that trial counsel did object to the photograph itself going into evidence," Judge Dunaway said. "After having been advised by the state that it had no other pictures available of the deceased, the court overruled the objection."

Another contention by Mr. Johnson involved his reportedly having received ineffective assistance of counsel by failing to timely object when the district attorney improperly commented on the defendant's silence, even though the same was stopped by the court.

"The matter about which the witness was being questioned was the defendant's refusal to give the combination to his gun safe to the investigating officer," Judge Dunaway said. "After the court's comment, the matter was pursued no further and no evidence was introduced as to whether or not the officer discussed anything about the combination to the safe with the defendant. The court does not find this to be a comment upon the defendant's silence nor any attempt by the district attorney to do so."

Web posted on Thursday, April 23, 2009

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